US ATTORNEY FILED AGAINST original filing

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS THE UNITED

STATES OF AMERICA AS A NAMED DEFENDANT FOR LACK OF

SUBJECT MATTER JURISDICTION AND MOTION FOR ORDER

BARRING.PLAINTIFF FROM FILING FURTHER PLEADINGS

WITHOUT COURT APPROVAL

The United States of America by Jan Paul Miller, United States Attorney for the

Central District of Illinois, and Assistant United States Attorney David H. Hoff, requests

that this Court dismiss the United States of Americas a named defendant in this

litigation pursuant to Fed. R. Civ. P. l2(b)(l) for lack of subject matter jurisdiction over

the United States of America.

Introduction

The pro se plaintiff hand delivered to the Office of the United States Attorney a

summons and his complaint filed in this case on February 11, 2005.

The complaint is unintelligible, does not establish a sufficient basis to vest this

Court with subject matter jurisdiction over the United States of America and also fails to

state a valid cause of action against the United States of America.

For these reasons, explained more fully immediately herienbelow, the United

States of America, should be dismissed as a named defendant in this case. This Court's

judgment entered in Case No. 04-2196 is dispositive of this motion insofar as it pertains

to the plaintiff and the United States of America. The United States of America also

asks that this Court bar the plaintiff from filing additional pleadings against the United

States of America until further order of court.

Argument

The United States of America Should Be Dismissed As a Defendant Because The

Complaint's Allegations Do Not Vest This Court With Subject Matter Jurisdiction to

Consider the Allegations Against the Federal Government

To maintain a viable claim against the United States in federal court, a party

must identify both: (1) a statute that confers subject matter jurisdiction on the district

court; and (2) a federal law that waives the sovereign immunity to the cause of action.

See dark v. United States, 326 F.3d 911, 912 (7th Cir. 2003); Macklin v. United States, 300

F.3d 814, 819 (7th Cir. 2002) (failure of plaintiff to meet both requirements mandates

dismissal of the claim); McNutt v. General Motors Acceptance Corp., 298 U.S. 182,189

(1936). Because federal courts are courts of limited jurisdiction, jurisdiction cannot be

presumed, and instead must be affirmatively and positively pled. Norton v. Lamey, 266

U.S. 511 (1925). The plaintiff's complaint provides no authority for either waiving the

Government’s sovereign immunity or vesting the district court with subject matter

Jurisdiction to grant any of his requested relief. Consequently, defendant. United States

of America, should be dismissed as a party defendant to this complaint pursuant to Fed.

R. Civ. P. 12(b)(l) for lack of subject matter jurisdiction.

On a motion to dismiss under Rule 12(b)(l) of the Federal Rules of Civil

Procedure, the plaintiff has the burden of proving that jurisdiction exists. See

Sapperstein v. Hager, 188 F.3d 852, 855-56 (7th Cir. 1999) (stating that the plaintiff has the

obligation to establish jurisdiction by competent proof); Commodity Trend Service, Inc. v.

Commodity Futures Trading Comm., 149 F.3d 679,685 (7fh Cir. 1998) (stating that on a

motion to dismiss under Rule 12(b)(l), the court is not bound to accept the truth of the

allegations in the complaint but that the plaintiff has the obligation to establish

jurisdiction by competent proof). It is true that courts read complaints liberally and

"accept as true the well pleaded allegation of the complaint and the inferences that may

be reasonably drawn from those allegations." Id.

The Seventh Circuit also has stated with regard to jurisdiction that "the

presumption of correctness that we accord to a complaint's allegations falls away on the

jurisdictional issue once a defendant proffers evidence that calls the court's jurisdiction

into question." Id. at 856.

The plaintiff's complaint does not meet any of the jurisdictional requirements

needed to vest this court with subject matter jurisdiction over the United States of

3

US ATTORNEY FILES AFTER ORDER TO DISMISS FROM COURT

UNITED STATES' RESPONSE TO PLAINTIFF'S

FED. R. CIV. P. 60(b) MOTION

.»

The United States of America, by Jan Paul Miller, United States Attorney for the

Central District of Illinois, and Assistant United States Attorney David H. Hoff, requests

that this Court deny the Plaintiffs Rule 60(b) motion for the same reasons as stated in

the Response to said motion filed by Carle Clinic Association and Carlo Foundation

Hospital that was filed with this Court on March 14, 2005, that is incorporated herein by

reference verbatim with the same force and effect as if paragraphs 1 ‑ 3 of said Response

were retyped as part of this Response.

The Plaintiffs motion does not cure the defects set forth in the United States'

motion to dismiss the plaintiffs complaint for lack of subject matter jurisdiction and in

the supporting memorandum filed in this cause on February 11, 2005, that also is

incorporated herein by reference as a substantive part of this response.

For these reasons, the plaintiffs Rule 60(b) motion should be denied, and the

plaintiff should be barred from filing any further pleadings against the United States of

America without leave of court.

Respectfully submitted this 15th day of March 2005.

JAN PAUL MILLER